Neutered USA Freedom Act Passes House; Is It Good Enough?

By William Peacock, Esq. on
May 8, 2014 10:55 AM

Don't "make the perfect the enemy of the good."

That's the motto of proponents of the most recent version of the USA Freedom Act, passed unanimously by the House Judiciary Committee on Wednesday. The bill, which is the first of its kind to make it out of committee, contains a number of pro-privacy reforms, including restricting the amount of data collected to "two hops" from the original target and a requirement that metadata requests be approved by a court in all but emergency cases.

The bill is good, and beats the status quo, but is good good enough?

Glaring Omissions

Most notably, the standard for obtaining metadata would be set at "reasonable articulable suspicion," rather than the Fourth Amendment's probable cause standard.

Sen. Patrick Leahy (D-Vt.), the sponsor of the Senate's counterpart, also expressed concern over the bill's failure to address national security letters, to provide for a special advocate in the FISA court, and other unspecific transparency measures. These reforms are included in the current version of the Senate bill, which will be considered this summer.

Another missing provision is a ban on "backdoor" searches through foreign communications. Instead of targeting Americans directly, the NSA fishes through foreign communications for Americans' information. NSA advocates fought suspiciously hard for the power, which they have rarely forthrightly acknowledged using, reports TheGuardian.

Rival Legislation

Though the House's version of the USA Freedom Act is the first bill to make it out of committee, it isn't the only reform proposal on the table. A second bill, sitting in the House Intelligence Committee, still has a chance. It does not require court approval for metadata requests.

And, of course, there is the possibility of changes to the USA Freedom Act in the Senate. Sen. Leahy has already stated that he would try to reincorporate some of the stripped reforms into the bill when it reaches the Senate later this year.

The bill is good, but is it good enough? Sound off on Twitter @FindLawLP.